Both the Obama administration and Senate Intelligence Committee recently took positions supportive of government secrecy in the national security arena. Where are the checks and balances when both the executive and legislative branches of government agree that critical information should be hidden from public view?
Commendably, Senators Mark Udall (D-CO) and Ron Wyden (D-OR) offered an amendment that would have required the executive branch to make public its understanding of surveillance laws. Doesn't seem like a lot to ask. Udall and Wyden explained their reasoning:
In our view, the executive branch’s decision to conceal the U.S. government’s official understanding of what this law means is unacceptable, and untenable in the long run. Intelligence agencies need to have the ability to conduct secret operations, but they should not be allowed to rely on secret laws.
Worse, as the Senators said, pervasive secrecy harms national security:
Furthermore, we note that the government has relied on secret interpretations of surveillance laws in the past, and the result in every case has been eventual public disclosure, followed by an erosion of public trust that makes it harder for intelligence agencies to do their jobs. This outcome can only be prevented by ensuring that the government’s interpretation of the law is always consistent with the public’s understanding.
Congress already unceremoniously reauthorized three expiring provisions of the Patriot Act earlier this year with no additional privacy or civil liberties protections, despite that the little we do know about how Patriot Act powers have been used evidences significant abuses. This time, the Senate Intelligence Committee roundly rejected the amendment by a voice vote.
Where is the oversight?
Meanwhile, Josh Gerstein of Politico reported that the Obama administration again invoked the state secrets privilege using the most extreme interpretation of the controversial privilege: that plaintiffs' claims must be dismissed at the outset because simply answering a complaint would harm national security.
Despite candidate Obama's rhetoric, the Obama administration has continued to assert state secrets to dismiss lawsuits challenging warrantless wiretapping and extraordinary rendition. This time, the Justice Department is seeking to dismiss claims brought by Muslims that the FBI engaged in religious discrimination in targeting Mosques and those who practice Islam. Attorney General Holder wrote in support of the assertion of the state secrets privilege:
. . . disclosure of the reasons for and substance of a counterterrorism investigation - whether the initial predicate for opening an investigation, information gained during the investigation, or the status or results of the investigation-could reasonably be expected to cause significant harm to national security.
Not only does Holder claim that revealing "the initial predicate for opening an investigation" would "cause significant harm to national security," but he writes that:
Even if the subjects have no terrorist intention . . . disclosure of the reasons they came under investigation may reveal sensitive intelligence information about them, their associates, or a particular threat that would harm other investigations.
This is an extraordinary assertion. It essentially says that FBI could target you for a constitutionally impermissible reason--say your religion--but you would not be able to challenge that action in court because revealing that the FBI's "initial predicate" for opening the investigation--which could have been improper--would harm counterterrorism activities, even if you had "no terrorist intentions." Using state secrets in this manner--to dismiss claims of government wrongdoing--gives the government carte blanche to break the law without punishment so long as the Attorney General will say the operations need to be secret to protect national security.
As if a record-breaking number of Espionage Act prosecutions against so-called "leakers," who are more often than not whistleblowers, didn't do enough to tarnish administration's self-appointed title as "the most transparent administration in history." The Obama administration's claims of secrecy and the Senate Intelligence Committee's rejection of transparency make it all the more necessary to protect - not prosecute - intelligence community whistleblowers. Who else will inform the public if the government breaks the law in secret?